Religion and Freedom of Speech: Cartoons and Controversies
The Una’s Lecture“Religion and Freedom of Speech: Cartoons and Controversies” by Robert Post, David Boies Professor of Law, Yale University March 14, 2007 On September 30, 2005, the Danish newspaper Jyllands-Posten solicited and published 12 cartoons depicting the prophet Muhammad. By American standards, the cartoons are prosaic.
One is a child’s portrait of Muhammad in the desert; another shows Muhammad’s face intertwined with Islamic symbols, like the crescent and the star; several poke fun of the newspaper, calling the cartoons a “PR Stunt” and the journalists a “bunch of reactionary provocateurs.” Some contain ordinary, rather anodyne satire. One shows Muhammad with a turban in the shape of a bomb; another confuses Muhammad with St. Peter, portraying the prophet at the entrance to cloud-filled heaven facing a long line of suicide bombers, saying, “Stop, Stop. We ran out of virgins.”
The consequence of publishing these cartoons was truly dreadful. There were riots throughout the world. According to one estimate, 139 people died. A fatwa was issued offering a milliondollar bounty for the death of the cartoonists. Newspaper editors were fired and imprisoned, newspapers were closed, and an Italian minister was forced to resign for displaying the cartoons on his T-shirt. The Swedish foreign minister was forced to resign for attempting to close a website that wished to display the cartoons.
Islam contains a rich history of portraying the prophet Mohammad, but the modern fundamentalist sects who now claim to speak for Islam believe that it is forbidden to publish any representation of Muhammad, or, in some versions, of any prophet recognized by Islam. How ought the law respond? How should the law mediate between the demands of religious sanctity and freedom of speech?
I construe this as a narrow question, which concerns only the coercive power of the state and the question of legal right. It is quite distinct from the ethical issue of when and how one should speak. All that is legally permitted is not ethically advisable. Carsten Juste, the editor-in-chief of Jyllands-Posten, said that “If I had known that the lives of Danish soldiers and civilians would be threatened, if I had known that, as my finger hovered one centimeter above the send button for publishing the drawings, would I have hit it? No. No responsible editor-in-chief would have done”(Cowell, A3). Juste was plainly correct to distinguish legal right from ethical propriety. Even if Jyllands-Posten were legally entitled to publish cartoons that were offensive, provocative, and likely to lead to violence, it may have been ethically inappropriate to do so. The law protects speech in order to safeguard the values that freedom of speech enables a society to fulfill. The nature of these values is contentious, but it can be assumed that the primary value fostered by freedom of speech is democratic legitimacy.
The definition of democracy is of course quite controversial, but I shall begin with what I take to be the unobjectionable premise that democracy refers to “the distinction between autonomy and heteronomy: Democratic forms of government are those in which the laws are made by the same people to whom they apply (and for that reason they are autonomous norms), while in autocratic forms of government the law-makers are different from those to whom the laws are addressed (and are therefore heteronomous norms.)”(Bobbio, 137).
When we use this definition, we must immediately distinguish democracy from majoritarianism, in which a majority of the people exercise control over their government. Although it is frequently said that “any distinct restraint on majority power, such as a principle of freedom of speech, is by its nature anti-democratic, anti-majoritarian” (Schauer, 40-41), a majority of the electorate can implement rules that are plainly inconsistent with democracy, as for example by voting a monarchy into office. These examples suggest that majoritarianism may be intimately associated with the practice of democracy, but it does not itself define democracy. That is why it is not unintelligible to conclude that particular exercises of majoritarianism are anti-democratic.
Democracy is distinct from majoritarianism because democracy is a normative idea that refers to substantive political values, whereas majoritarianism is a descriptive term that refers to a particular decision-making procedure. Implicit in the idea of democracy are the values that allow us to determine whether in specific circumstances particular decision-making procedures are actually democratic. Governments, for example, do not become democratic merely because they hold elections in which majorities govern. Such elections are currently held in North Korea. To know whether these elections make North Korea democratic requires an inquiry into whether these elections are implemented in a way that serves democratic values. It is a grave mistake to confuse democracy with particular decision-making procedures, and to fail to identify the core values that democracy as a form of government seeks to instantiate.
Because these values are associated with the practice of self-determination, we must ask what it means for a people to engage in the practice of self-governance. This practice is often interpreted to mean that a people be made ultimately responsible for governmental decisions, either by making such decisions directly or by electing those who do. This is the view, for example, of Alexander Meiklejohn or Owen Fiss. But this is an insufficient account of the practice of selfgovernment. For reasons that I shall explain, I think it preferable to say that the practice of selfgovernment requires that a people have the warranted conviction that they are engaged in the process of governing themselves. The distinction is crucial, for it emphasizes the difference between making particular decisions and recognizing particular decisions as one’s own. Selfgovernment is about the authorship of decisions, not about the making of decisions.
We can test this distinction by imagining a situation in which the people retain their collective capacity to decide issues, but in which individuals within the collectivity feel hopelessly alienated from these decisions. Suppose, for example, that in State X citizens are provided with interactive computer terminals that they are required to use in the morning to register their preferences about various issues. Each morning an agenda for decisions (composed by an elected assembly) is presented on the terminal. The citizens of State X must decide what color clothes should be worn; what menu should be served for lunch and dinner; the boundaries of the attendance zones for the neighborhood school; whether a stop sign should be placed at a local intersection; and so on. Assume that citizens of State X can get from their computer whatever information they believe is relevant for their votes, including information about the likely views of other citizens.
Imagine, further, that State X has no public discourse. There are neither newspapers nor broadcast media. The state bans political parties and associations. It proscribes public demonstrations and prohibits individuals from publishing their views to other citizens. Each citizen must make up his or her mind in isolation. Decisions in State X, however, are made on the basis of the majority vote of the collectivity, and all individuals are henceforth required to comply: to wear blue, or to serve chicken for lunch, or to attend a particular school, or to stop at the local intersection. Individuals in State X feel completely alienated from these decisions. They do not identify with them and instead feel controlled and manipulated by the external force of the collectivity.
Would we deem State X an example of a society that engages in self-determination? Although in State X the people retain their ability, “as a collectivity, to decide their own fate”(Fiss, 37-38), which is to say to make decisions by majority rule, I very much doubt that we would characterize State X as a democracy. We are much more likely to condemn it as a dystopian tyranny. Rousseau long ago diagnosed the reason for this condemnation: collective decision-making is merely oppressive unless there is some internal connection between the particular wills of ndividual citizens and the general will of the collectivity.
Of course it is implausible to claim, as Rousseau might be thought to claim, that there can exist a complete identity between the particular wills of individual citizens and the general will of the democratic state. It is enough that individual citizens can recognize in that general will the potentiality of their own authorship. When this occurs, collective decision-making is democratic because it is experienced as self-determination. But when citizens feel alienated from the general will, or from the process by which the general will is created, voting on issues is merely a mechanism for decision-making, a mechanism that can easily turn oppressive and undemocratic.
It follows that the value of democracy can be fulfilled only if there is a continual mediation between collective self-determination and the individual self-determination of particular citizens. If democracy requires that citizens experience their government as their own, as representing them, they must experience the state as in some way responsive to their own values and ideas. How is this theoretically possible under modern conditions of diversity, when the citizens of a state are heterogeneous and disagree with each other? The focus of analysis must shift from specific state decisions to the process by which these decisions are authorized. Citizens must experience that process as responsive to their own values and ideas.
This is why democracies must protect freedom of speech — so that citizens can participate in the formation of public opinion. If the decisions of the state are made responsive to public opinion, the potential exists for citizens to experience their government as their own, even if they hold diverse views and otherwise disagree. That is why in the United States we say that the First Amendment, which is anti-majoritarian, is nevertheless “the guardian of our democracy” (Brown v. Hartlage, 456 U.S. 45, 60 (1982). Han Kelsen, speaking of democracy, puts the matter this way:
A subject is politically free insofar as his individual will is in harmony with the “collective” (or “general”) will expressed in the social order. Such harmony of the “collective” and the individual will is guaranteed only if the social order is created by the individuals whose behavior it regulates. Social order means determination of the will of the individual. Political freedom, that is, freedom under social order, is self-determination of the individual by participating in the creation of the social order. . . .
The will of the community, in a democracy, is always created through a running discussion between majority and minority, through free consideration of arguments for and against a certain regulation of a subject matter. This discussion takes place not only in parliament, but also, and foremost, at political meetings, in newspapers, books, and other vehicles of public opinion. A democracy without public opinion is a contradiction in terms (Kelsen, 285-88).
A democracy must protect the communicative processes by which its citizens work toward an “agreement” that is “uncoerced, and reached by citizens in ways consistent with their being viewed as free and equal persons” (Rawls, 229-230). Of course, under conditions of modern heterogeneity, actual agreement is impossible, so the notion of agreement functions merely as a regulative idea for the formation of public opinion. If we use the term “public discourse” to refer to the communicative processes by which public opinion is formed, we can say that public discourse continuously but unsuccessfully strives to mediate between individual and collective self-determination to produce “a common will, communicatively shaped and discursively clarified in the political public sphere”(Habermas, 81).
In a modern democracy, therefore, citizens are free to engage in public discourse so as to make the state responsive to their ideas and values, in the hope that even if the state acts in ways inconsistent with those ideas and values, citizens can nevertheless maintain their identification with the state. Freedom of speech is a necessary condition of democratic legitimacy, not a sufficient condition. If the state prevents citizens from participating in public discourse when they would otherwise desire to do so, the state loses democratic legitimacy with respect to those citizens, for it prevents them from attempting to make public opinion responsive to their views.
The Danish cartoons of Muhammad are plainly part of public discourse. They concern matters of intense public controversy. When Danish author Kåre Bluitgen complained that he could not find an artist brave enough to illustrate his forthcoming children’s book about the life of Mohammad, the culture editor of Jyllands-Posten decided to test the “fear of violence from Islamic radicals” by inviting members of the Danish Cartoonist Society to depict their interpretations of the Prophet (Smith, 5). This fear is relevant to matters of important public policy, such as immigration. If public policy is to be directed by an intelligently-informed public opinion, and if citizens are to feel that public policy is potentially responsive to their views, they must be free to express and discuss their perspectives on the matters satirized in the Jyllands-Posten cartoons.
This, however, is merely the beginning of analysis. The question is whether there are state interests that can justify censoring particular statements within public discourse. In the case of the Danish cartoons of Mohammad, we must consider whether suppression is justified by state interests in (1) the suppression of blasphemy; (2) the suppression of speech that is highly offensive to particular religious groups; or (3) the suppression of speech that contributes to discrimination against otherwise subordinated groups.
Bobbio, Norbeto. Democracy and Dictatorship: The Nature and Limits of State Power, trans. Peter Kennealy. University of Minnesota Press, 1989.
Cowell, Alan. “Cartoons Force Danish Muslims to Examine Loyalties.” New York Times, February 4, 2006.
Fiss, Owen. Liberalism Divided: Freedom of Speech and the Many Uses of State Power. Westview Press, 1996.
Habermas, Jürgen. The Theory of Communicative Action, trans. Thomas McCarthy. Polity Press, 1989.
Kelsen, Hans. General Theory of Law and State, trans. Anders Wedberg. Harvard University Press, 1961.
Rawls, John. “Justice as Fairness: Political Not Metaphysical.” Philosophy and Public Affairs, #14, 229-30, 1985.
Schauer, Frederick. Free Speech: A Philosophical Enquiry. Cambridge University Press, 1982.
Smith, Craig. “Adding Newsprint to the Fire.” New York Times, February 5, 2006.
*Excerpt from Post's lecture, “Religion and Freedom of Speech: Cartoons and Controversies,” as the Una's Lecturer at the Townsend Center on March 13, 2007.
Robert Post is David Boies Professor of Law, Yale University. He taught at the Boalt Hall School of Law at UC Berkeley, 1983-2003. In March 2007 Post returned to Berkeley to deliver the Una’s Lecture at the Townsend Center.
This article can be found in the April/May 2007 newsletter.